Fletchers claims “major victory” on interim payments of costs

Southport injury firm Fletchers claims to have secured the first judgment ordering defendants to make an interim costs payment based on the new version of the rules which came into force in April 2013.

District Judge Baldwin said the firm complained, in its submissions at Liverpool County Court, of frustration that defendants sought to “throw any obstacle in the way of any early payment of any part” of an admitted costs liability.

DJ Baldwin said counsel for the claimants argued with “clarity and force” that CPR 44.2(8) provided a “positive obligation for the court to consider making an order for the payment of a reasonable amount on account of costs”, unless there was good reason not to do so.

The district judge said counsel stressed that the change to the old interim payment rule “changed the emphasis markedly from a discretionary ‘may order’ to a qualified mandatory ‘will order unless’” and this should lie behind the court’s approach.

Delivering judgment in Travers v Poole Hospital NHS Foundation Trust (case no. C00LV184), DJ Baldwin, a regional costs judge, said the medical negligence claim was settled for £1,500 in October 2015, on the basis that the defendant paid reasonable costs and disbursements.

He said the claimant sent an informal bill for £14,164 the following month, but agreement was not reached. The firm made an application for an interim costs payment of £7,780 in December, amounting to just under 55% of the final bill.

DJ Baldwin said the NHS Litigation Authority (NHSLA) argued that the application was “misconceived and premature” and it was only after a provisional assessment that such an application should be entertained.

However, the district judge said he disagreed and that CPR 44.2(8) was engaged. “I am satisfied on the information before me that £7,780 is prima facie no more than a reasonable amount, not being an excessive or unrealistic proportion of the bill as claimed.”

DJ Baldwin said neither the defendant’s skeleton argument or submissions “sought to raise any positive reasons arising out of fundamental objections to the costs sought on an interim basis”, beyond procedural matters.

He concluded that there was no good reason not to exercise the court’s power under CPR 44.2(8) and made an order for the defendant to pay the interim costs sought by the claimant.

The firm described the ruling as a “major victory” and would be used throughout the personal injury sector by claimants seeking interim payments – it provided “clear guidance” that it was for defendants to present valid reasons as to why a request was unreasonable.

“The court has now sent a very clear message that the rule change is to be interpreted in the claimant’s favour. The defendants should now have to prove that there is a genuine reason not to provide an interim payment at an early stage, which will no doubt prove difficult in the majority of cases.”

I do not understand why this is described as a ‘first decision’. Exactly the same decisions are being made by costs masters in the High Court on a weekly basis. There is nothing ground breaking at all about Fletcher’s ‘win’. It is par for the course.

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